Jack v. Doran's Executors , 37 Ala. 265 ( 1861 )

R. W. WALKER, J.

James Doran, by. his will, which was executed in this State, made a direct bequest of freedom to certaiu slaves. According to the repeated decisions of this couit, it is clear that, unless there was some legislative provision authorizing the emancipation, the bequest was void.— Trotter v. Blocker, 6 Por. 269 ; Atwood v. Beck, 21 Ala. 612; Alston v. Coleman, 7 Ala. 795, Roberson v. Roberson, 21 Ala. 273. It is not pretended that there was any legislative authority for the emancipation, except such as was furnished by the special acts of 1832 and 1S-33, which are set out in the record. These acts authorized Doran to emancipate these slaves, the emancipation to take effect at Ins discretion; but they provided, as a condition precedent to the emancipation, that be should previously convey to the judge of the county court'of. Jhckson county six hundred and forty acres of land, on which?lie then resided, or lands equal in value thereto, in trust forever, for the use of said slaves; as security that they should not become chargeable on any city, county, or town in this State. No conveyance of any kind was ever made, or attempted to be made by Doran, to the judge of the county court, in trust for the use of the slaves. The attempt to-devise the six hundred and forty acres of land referred to,, directly to the slaves, was, perhaps, made with the view of complying with this requirement of the legislature.- But that attempt was futile, if for no other reason; because the will, having been attested by only two witnesses, was not so executed as to pass real estate ; and, consequently, was admitted to probate, only so far as it related'to personalty. This devise of the land to the slaves being void, there can be no pretense that Doran ever performed, either in form or in substance;, the condition which the legislature prescribed as a pre-requisite to the emancipation. The bequest of freedom must, therefore, be treated just as if these special acts of the legislature had never existed. Thus considered, it is, according to the well-settled law of this State; clearly invalid.

Judgment affirmed.